Book IX
Concerning inheritance
De hereditatum
Antoninus Pius, 146:
If heirs are appointed for unequal portions and were substituted for each other reciprocally and mention was made of any portions in the provision for the substitution, it must be considered that the testator impliedly referred to no other portions in connection with the substitution than that specifically mentioned in connection with the original appointment of heirs.
Septimius Severus and Antoninus Caracalla, 25 December 197:
If you are about to claim the inheritance of the man whom you say was your father, lay before the magistrate the proof of your claim.
Septimius Severus and Antoninus Caracalla, 30 May 198:
If you prove to a competent magistrate that an annuity was left you by a legacy or trust, you have the right to demand it at the beginning of each year.
Antoninus Caracalla, 25 April 215:
You are not forbidden to go before the magistrate and accuse a relative of despoiling your inheritance.
Antoninus Caracalla, 11 July 215:
An error of names occurring in the writing does not diminish the right arising out of legacies if no doubt exists as to what is bequeathed.
Alexander Severus, 16 March 223:
It is forbidden by a senate decree and by an edict of Claudius for those employed to write a testament to insert therein any provision of future benefit to themselves even if the testator should dictate such a provision, and any person doing so shall not inherit under said testament.
Alexander Severus, 15 September 223:
Whoever, uncertain of the quantity of an inheritance, sells it, persuaded by the purchaser that the quantity is small, cannot be sued to deliver the property or assign rights of action; and they may sue to recover it.
Alexander Severus, 9 March 224:
An inheritance cannot be taken from heirs, as unworthy, on the pretext that the burial of the deceased testator was not in compliance with the last wishes of the decedent.
Alexander Severus, 3 February 225:
The legacies which a husband or wife with their own hand added to the testament of their spouse will be considered as invalid.
Alexander Severus, 15 February 225:
The question of the intention of the deceased is a question in the judgement of the magistrate.
Alexander Severus, 1 June 225:
A testament once made public, although the material on which it was written in the first place by the testator was destroyed by an accident, is nevertheless valid.
Alexander Severus, 18 December 229:
A criminal proceeding is added to a civil suit, if it appears that a testator did not make their testament voluntarily, but was compelled to make it by the appointed heir, or to appoint as heirs persons whom they did not want.
Gordian III, 21 July 239:
If a testator erred in a name – given name or surname – but there is no uncertainty as to whom they meant, such error cannot stand in the way of truth.
Diocletian and Maximian, 1 January 285:
The law is well known that persons, who are shown to have hindered a person in making of a testament, are barred, as unworthy persons, from any benefit from the testator’s inheritance.
Diocletian and Maximian, 1 July 290:
If the witnesses did not attest the testament in the presence of the testator, it is of no validity.
Diocletian and Maximian, 293:
If the testament was made legally and the heir or heirs are competent to receive the inheritance, it cannot be invalidated by an Imperial Edict.
Diocletian and Maximian, 6 July 293:
A testament legally made will not any the less be valid because it is shown to have been stolen after the death of the testator.
Diocletian and Maximian, 8 December 293:
The order of succession provided by the law of the Twelve Tables shows clearly that when a man dies intestate, his posthumous heir has a better right to his inheritance than the sibling of the decedent, though of full blood.
Diocletian and Maximian, Nicomedia, 26 June 294:
It is not doubtful that a sibling has preference over an uncle or aunt in inheriting on intestacy.
Diocletian and Maximian, 28 December 294:
It is nothing criminal for a husband or wife to induce their spouse by flattery and caresses to make their last will in their favour.
Constantine I, Serdica, 1 February 339:
I. Since it is undignified that testaments and last wishes of decedents should become invalid through useless technicalities, we deem it best to dispense with formalities, and in instituting an heir no particular form of words is necessary, whether that is done by imperative, direct or indirect words. An appointment shall be valid by whatever expressions or by whatever form or words that are made, provided only that the intention is thereby made clear. No solemnity of words is necessary.
II. Formality or words is not necessary to leave legacies or trusts, so that it makes no difference what case (of a noun) or what manner of speaking a testator uses in expressing their wishes in that respect.
Constantius II, Sirmium, 25 February 352:
Eunuchs, the same as others, may, by observing the rules of law, execute a testament, make a last will and write a codicil.
Valentinian I, Valens and Gratian, Contionacum, 7 August 371:
When the Emperor or the Empress are appointed as heirs, they shall have the same rights as others. That applies also to codicils and letters creating a trust, legally executed. And, as has been provided in previous law, it is permitted to make a testament in favour of the Emperor or Empress, and to change it.
Gratian, Valentinian II and Theodosius I, Thessalonica, 1 July 380:
It is neither doubtful nor uncertain that an inheritance or legacy or trust may be left just as to the Monarch as to any other person of rank or power.
Arcadius and Honorius, Milan, 27 July 395:
It is clear that a husband is excluded from the succession to the property of his wife who dies intestate, when she had blood-relatives surviving her, since the responses of jurists, as well as the law of nature itself, makes them her successors.
Arcadius and Honorius, 21 March 396:
A testament ought not to be held invalid because the decedent called it by different names, since superfluous matters are not prejudicial. For only the omission of necessary requirements renders wills ineffective and thwarts the testator’s wishes.
Theodosius II and Valentinian III, Constantinople, 20 February 428:
A person may appoint a total stranger as their heir.
Theodosius II and Valentinian III, Constantinople, 12 September 439:
By this well-considered law, we ordain that persons making their testament in writing shall be permitted, if they do not want anyone to know its contents, to produce the writing, sealed or tied, or only closed and folded, and lay it before all of the witnesses at the same time, in order that it may be sealed and signed by them, provided that the testator shall, in the presence of the witnesses, state that what is laid before them is their testament, and provided that the testator signs the testament at its conclusion with their own hand in the presence of the witnesses. If this is done and the witnesses subscribe and deal it on one and the same day, the testament shall be valid, and shall not be void because the witnesses do not know the contents of the testament.
Justinian I, Constantinople, 11 December 528:
We direct that annuities provided by legacies or trusts which the testator wanted paid not only to a certain person but also to their heirs shall be so paid according to the wish of the testator to all heirs, and to the heirs of the heirs.
Justinian I, Constantinople, 18 March 530:
If it is shown that a testator changed their mind and executed a second testament in a perfectly legal manner, the first testament is made void.
Justinian I, Constantinople, 1 September 530:
That an insane person may, in lucid intervals, make a testament, though doubted by the ancients, has been accepted as true by past emperors and by ourselves. But we must now decide a matter which also occupied the attention of the ancients, namely what the situation is, if insanity overtakes them while making a testament. We, accordingly, decide that a testament of a person attacked by insanity in the act of making it shall be invalid. But if they make a testament or any last will during lucid intervals, commencing and finishing it without an attack of insanity, such testament or last will shall be valid if all other legal requisites of such proceeding are complied with.
Justinian I, Constantinople, 20 February 531:
Dispelling all obscurities of the Miscellaneous Julian law, we permit no one to take an oath according to the aforesaid law, but this law, together with the provisions for the Mucianian promise in connection therewith, shall be utterly void. Women shall be permitted, despite the threat of their husbands by which widowhood is enjoined on them, to enter into another marriage without taking an oath that they do so for the purpose of procreating children. The penalty fixed for such case shall no longer be enforced, and she may have the property left her by her husband, whether she have children or not, lest perjury be committed through legal compulsion and a colourable oath.
Justinian I, Constantinople, 1 November 531:
I. It is clear that, according to the intent of the enactment recently promulgated concerning the law Julia Miscella, not only is that law repealed as to women, but as to men as well.
II. Should two or more persons, in hopes that an inheritance would perhaps come to them by reason of blood relationship, have entered into pacts as to such hoped-for inheritance, in which it was specifically declared that if their relative should die leaving them the inheritance, certain specified things should obtain as to the inherited estate; or if perchance the benefit of the inheritance should come to only some of them, then certain pacts should be in force, then it is doubted whether these pacts should be held valid. The question arises because this agreement was made during the life of the person whose property they hope to inherit, and because the contracting parties did not make the pact as though the property would come to them in any event, but under two conditions, namely if the relative should die and if they, the contracting parties, should become the heirs of the estate. But all such agreements appear to us odious, and pregnant with unhappy and perilous results. For why should persons enter into a pact concerning the property of a living person without their knowledge? According to ancient regulations, therefore, we ordain that such pacts which have been entered into are contrary to good morals, shall be invalid and shall not be carried out, unless, perchance, the person with reference to whose inheritance the pact was made consented thereto, and persevered in such consent to the time of their death; for then, when cruel hope is absent, and the pact is made with their knowledge and consent, the contracting parties are permitted to carry out the agreement made. We order, accordingly, that neither a donation of any such property nor mortgage thereof, nor any contract in relation thereto shall have any validity whatever, since the ethics of the present time do not tolerate that anything shall be done, or any pact be made concerning the property of another against the owner’s consent.
III. If a legatee conceals a testament but it was thereafter brought to light, it was doubted whether the person guilty of such concealment could claim the legacy left them therein. We think that this should not be permitted. Such legatee who wanted to defraud an heir out of their inheritance shall not receive the fruits of their cunning, but such legacy shall be taken from them, and it shall become the property of the heir, as if it had not been given at all.